Master Terms and Conditions
These Master Terms and Conditions together with any Order Form (as defined below) that incorporates these terms (“Agreement”) is a binding agreement by and between Dominate with SEO LLC d/b/a Romain Berg, a Minnesota Limited Liability Company, with offices located at 80 South Eighth Street, Suite 900, Minneapolis, Minnesota 55402 (“Service Provider“) and the customer identified in an applicable ordering document (“Customer” and together with Service Provider, the “Parties“, and each a “Party“).
This Agreement becomes effective upon the execution (including by electronic acceptance of applicable terms), payment, or other acceptance (“Effective Date”) of an order form, statement of work, proposal, or other ordering document by Customer (“Order Form”). For clarity, if Customer issues a payment to Service Provider for Services, that payment constitutes Customer’s acceptance of the Agreement. The person accepting these terms represents and warrants that they are authorized to enter into this Agreement on behalf of Customer.
Service Provider shall provide to Customer the services (the “Services“) set out in one or more Order Forms. For the avoidance of doubt, Service Provider may perform Services for Affiliates of Customer, as directed by Customer. Customer shall remain liable for its Affiliates unless otherwise agreed by the parties in writing. “Affiliates” means any other person or entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, a party. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a party, whether through the ownership of voting securities, by contract, or otherwise/ownership of more than fifty percent (50%) of the voting securities of a party.
Service Provider makes a good faith effort to provide content and information that accurately reflects the truth of any particular topic. However, Service Provider makes no claims, implied or explicit, that the content we deliver is free of errors or accurate. Service Provider does not claim nor certify that any Service or deliverables as part of any ordered Service include the appropriate disclaimers, waivers, or meet any other regulatory requirements specific to any particular industry or topic.
For the duration of this Agreement Customer hereby grants Service Provider the right to act as a proxy or agent to represent Customer, its employees, and/or its business or brand, as necessary for the purposes of carrying out Services on Customer’s behalf. (By way of example: (i) if Service Provider is performing lead generation, this may involve communicating with prospective leads and clients by way of email, phone, chat or any other medium necessary to fulfill Customer’s Order Form, and (ii) Service Provider may accept third-party terms and conditions on Customer’s behalf as needed to perform the Services.)
Service Provider is constantly working to improve the Services and product offerings. From time to time Service Provider may, with or without notice, modify, remove, or add various features or functionalities to our Service line. Further, we may at times, suspend, terminate or delete a Service or offering altogether, provided that Customer will be notified of material changes to Services or offerings, and Service Provider will make commercially reasonable efforts to substitute functionally similar Services or provide a pro-rated refund in the event that Service Provider cannot make a reasonable substitution.
Customer shall respond promptly to any reasonable requests from Service Provider for instructions, information or approvals required by Service Provider to provide the Services, and cooperate with Service Provider in its performance of the Services and provide access to Customer’s premises, employees, contractors, and equipment as required to enable Service Provider to provide the Services. Customer shall take all steps necessary to prevent Customer-caused delays in Service Provider’s provision of the Services. Customer shall obtain any required licenses or consents for Service Provider to comply with its obligations under this Agreement.
Customer may not use the Services in connection with any illegal activities or activities that Service Provider reasonably deems improper in its sole discretion. Service Provider reserves the right to take preventative or corrective actions to protect Service Provider and its users if it determines its Services are being used for improper purposes. While using the Services, Customer may not: (a) impersonate any person or entity, falsely state or otherwise misrepresent Customer’s affiliation with any person or entity, or use or provide any fraudulent, misleading or inaccurate information; (b) defame, abuse, harass, stalk, threaten or otherwise violate the rights of others, including without limitation others’ privacy rights or rights of publicity; (c) access or use (or attempt to access or use) another user’s account without permission; (d) transmit any software or materials that contain any viruses, worms, trojan horses, defects, or other items of a destructive nature; (e) modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any aspect or portion of the Services; (f) “frame” or “mirror” any aspect or portion of the Services; (g) use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Services (if applicable); or (h) harvest or collect information about or from other users of the Services.
Unless approved in writing by Service Provider, Customer may not re-sell any leads or data that is provided or sold to Customer by Service Provider. Customer acknowledges and agrees that Customer is the “end user” of such leads and data and that such leads and data will not be shared, sold, or traded with any other third party without the prior express written consent by Service Provider.
Customer agrees that it shall not, at any time during the Term and thereafter, make statements or representations, whether directly, indirectly, in writing, orally, or otherwise, about Service Provider or its employees that (i) contain Service Provider’s Confidential Information, (ii) are libelous or defamatory, or (iii) are clearly false or misleading.
Customer represents and warrants that: (a) it is duly organized, validly existing and in good standing under the laws of its state of organization or incorporation; (b) it is duly qualified to do business and is in good standing in every jurisdiction in which such licensing and qualification is required for purposes of this Agreement; (c) it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; (d) the execution or acceptance of this Agreement by the individual whose signature or acceptance is set forth on the applicable Order Form, and the delivery of this Agreement by Customer has been duly authorized by all necessary action on the part of Customer; and (e) Customer, its owners, employees, contractors and agents shall not engage in any conduct that involves the making or publishing of written or oral statements or remarks (including, without limitation, the repetition or distribution of derogatory rumors, allegations, negative reports, or comments) that are disparaging, deleterious, or damaging to the integrity, reputation, or good will of the Service Provider, its owners, employees, contractors, agents, or clients.
Fees and Expenses
In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set out in the applicable Order Form. Unless otherwise provided in this Agreement or the applicable Order Form, all sales are final and non-refundable. Payment to Service Provider of such fees and the reimbursement of expenses pursuant to this Section 3 shall constitute payment in full for the performance of the Services. Unless otherwise provided in the applicable Order Form, Service Provider will invoice Customer on a monthly basis and said fee will be payable on the first day of each billing cycle. Service Provider does not offer refunds for any fees or purchases once an Order Form has been accepted. In the event that Customer is dissatisfied with the Services, Customer may reach out to email@example.com on a case-by-case basis. Service Provider makes no guarantee of specific results or remediation for any such case. If Service Provider (in its sole discretion) decides to deviate from its policy and offer Customer a refund, in part or in whole, Service Provider may deduct the costs necessary to cover any transaction expenses and fees associated with Customer’s payment. A further 10% may also be deducted at Service Provider’s discretion to help cover the administrative costs associated with the processing of Customer’s Order Form, customer service responses, and other business processes related to the Services. CUSTOMER UNDERSTANDS AND AGREES THAT SERVICE PROVIDER’S ONGOING SERVICES ARE SUBSCRIPTION BASED AND THE CONTRACT FOR SERVICES SHALL AUTOMATICALLY RENEW AT THE END OF THE INITIAL TERM FOR SUCCESSIVE PERIODS EQUAL TO THE LENGTH OF THE INITIAL TERM (EACH A “RENEWAL TERM”) AT THE SAME FEE AS ESTABLISHED FOR THE INITIAL TERM UNLESS EITHER PARTY PROVIDES WRITTEN NOTICE TO THE OTHER PARTY OF ITS ELECTION TO TERMINATE THE SERVICE AGREEMENT WITH 90 DAYS NOTICE PRIOR TO THE END OF THE THEN-CURRENT TERM. THE RENEWAL TERM SHALL BE ONE MONTH.
Customer shall reimburse Service Provider for all reasonable expenses incurred in accordance with the Order Form if such expenses have been pre-approved by Customer. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Service Provider’s income, revenues, gross receipts, personnel or real or personal property or other assets. Except for invoiced payments that the Customer has successfully disputed, all late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Service Provider for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Service Provider does not waive by the exercise of any rights hereunder), Service Provider shall be entitled to suspend the provision of any Services if the Customer fails to pay any fees when due hereunder.
Service Provider warrants that it shall perform the Services: (a) in material accordance with the terms and subject to the conditions set out in the respective Order Form and this Agreement; (b) using personnel of commercially reasonable skill, experience and qualifications; (c) in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services. Service Provider’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be as follows: Service Provider shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Service Provider cannot cure such breach within a reasonable time (but no more than 30 days) after Customer’s written notice of such breach, Service Provider shall within 30 days after the effective date of termination, refund to Customer any fees paid by the Customer as of the date of termination for the affected Service or Deliverables (as defined below), less a deduction equal to the fees for receipt or use of such Deliverables or Service up to and including the date of termination on a pro-rated basis. The foregoing remedy shall not be available unless Customer provides written notice of such breach within 15 days after delivery of such Service or Deliverable to Customer. Further, due to the high volume of professional and repeat plaintiffs in the area of digital accessibility, Service Provider is not responsible or liable for third-party allegations relating to digital accessibility.
Although Services often result in substantial increases in ranking, exposure and web traffic, due to the complex and ever-evolving nature of search engine algorithms Service Provider cannot guarantee any particular ranking or outcome. Further, there may be circumstances or actions that Customer takes which have a negative impact on desired results. For example, Service Provider may write or optimize high-performing content, but a negative SEO attack against Customer, or addition of toxic backlinks, or other optimization penalties may impact the ability of Service Provider’s efforts to perform as intended. SEO is a process that takes time, and results generally improve the longer optimization activities have taken place. (While results may be seen within a few days, search engine providers may reward “aged” content to a greater degree, and as such it may take 4-12 (or more) weeks to see the full effect of Services.)
SERVICE PROVIDER MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 4, AND ALL SERVICES ARE PROVIDED “AS IS”. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
Certain industries, including but not limited to cannabis, healthcare, medical, supplement, or legal services may be held to certain compliance regulations as to what can and cannot be said in marketing materials, or when promoting a service or product. Service Provider makes no guarantee or claims that content will accurately meet or comply with such regulations, guidelines or laws specific to any industry or jurisdiction. CUSTOMER IS REQUIRED TO REVIEW ANY CONTENT AND ANY DELIVERABLES PROVIDED BY SERVICE PROVIDER, AND TO MAKE SURE THEY ACCURATELY AND LAWFULLY DELIVER CUSTOMER’S MESSAGE OR REPRESENT CUSTOMER OR ITS BUSINESS TO THE INTENDED AUDIENCE IN A WAY THAT ADHERES TO ALL APPLICABLE RULES, REGULATIONS, AND LAWS OF THE APPROPRIATE JURISDICTIONS FOR ANY INTENDED PURPOSE. SERVICE PROVIDER DISCLAIMS ANY AND ALL WARRANTIES FOR ANY CONSULTATIVE ADVICE OR INFORMATION OBTAINED ON OR THROUGH OR AS PART OF THE SERVICES.
Service Provider may create or develop certain creative assets to Customer’s specifications (e.g., websites, web copy, articles, social media accounts and contented posted through such accounts by Service Provider) (“Deliverables”). Upon payment in full, Service Provider assigns to Customer all of its intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights, except for third-party intellectual property rights (collectively, “Intellectual Property Rights“) in and to all Deliverables to Customer under this Agreement. Upon payment in full, Service Provider acknowledges that all Deliverables that are copyrightable are “works made for hire” by Service Provider for Customer. Notwithstanding the foregoing, Deliverables may include third party items, such as “free use” or stock images, or Pre-Existing IP (as defined below) of Service Provider. In the event that images are requested as part of the Services, Service Provider will make a good faith effort to ensure that Service Provider has sufficient license rights to make such items available to Customer for the intended use or to pass through applicable third party license terms. However, Service Provider makes no explicit guarantee or warranty with respect to any such third-party items. To the extent that Service Provider includes any Pre-Existing IP of Service Provider in any Deliverables, Service Provider hereby grants Customer a perpetual, non-exclusive license to use such Pre-Existing IP solely to the extent necessary for Customer to use the applicable Deliverable for its intended purpose.
Customer hereby grants Service Provider a license to use all Intellectual Property Rights in Customer’s brand assets (including accounts, logos, photos, videos, and advertisements), information, data, content, publicly available information, and other material provided or made available by Customer to Service Provider (“Customer Material”) free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free basis to the extent necessary to enable Service Provider to provide the Services and Deliverables, and otherwise comply with its obligations and enforce its rights under this Agreement. Service Provider may modify and publish Customer Material in connection with the Services. Customer represents and warrants that Customer has the right, authority, power, and permission to grant such license to Service Provider. Service Provider may use Customer’s name, logos, trademarks, service marks, copyrighted materials or refer to any advertising, publicity or instructional material, Services, or Deliverables without obtaining Customer’s prior written approval.
Customer shall at all times solely and exclusively own its Website. Service Provider shall have no right, title, or interest of any kind in Customer’s Website, business or Confidential Information as a result of providing Services under this Agreement except as expressly set forth herein.
Notwithstanding any other provision of this Agreement, Service Provider shall have the right, at any time during or after the term of this Agreement, to use any general ideas, concepts, know-how, and techniques contained in or derived from the performance of Services or the creation of Deliverables that are not Customer Material (“Residual Knowledge”). As between Service Provider and Customer, Service Provider shall retain all right, title, and interest in and to any Intellectual Property Rights owned or controlled by Service Provider prior to the Effective Date or developed during the Term of this Agreement independent of the Services provided to Customer (“Pre-Existing IP”), and any Residual Knowledge. Customer shall have only those rights to Pre-Existing IP as are explicitly granted in this Agreement.
From time to time during the Term of this Agreement, either Party (as the “Disclosing Party“) may disclose or make available to the other Party (as the “Receiving Party“), non-public, proprietary, and confidential information of Disclosing Party (“Confidential Information“); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 6; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section 6 only, Receiving Party’s Group shall mean the Receiving Party’s affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
Term, Termination and Survival
This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services under all Statements of Work, unless sooner terminated pursuant to this Section 7. In the event that Service Provider determines, at its sole discretion, that it is unable to fulfill an Order Form, Service Provider may cancel Customer’s order and provide a full refund of any purchase price. In such cases Customer agrees that a refund in full for such Order Form is the total extent of Service Provider’s liability and that Customer agrees to take no further action for any losses or damages that may result directly or indirectly of any kind or nature under any theory of law due to the cancellation. Once an Order Form is placed, Customer cannot cancel the order. However, if Service Provider has not yet started Services or if we are willing on a case-by-case basis to take the loss for any resources spent, Service Provider may, at its sole discretion opt to allow the cancelation of such Order Form and offer a partial or full refund.
Either Party may terminate this Agreement or an applicable Order Form for cause, effective upon written notice to the other Party (the “Defaulting Party“), if the Defaulting Party: (a) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within 7 days or is not dismissed or vacated within 45 days after filing; (d) is dissolved or liquidated or takes any corporate action for such purpose; (e) makes a general assignment for the benefit of creditors; (f) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Notwithstanding anything to the contrary in this Section 7, Service Provider may terminate this Agreement for cause before the expiration date of the Term on written notice if Customer fails to pay any amount when due hereunder: (a) and such failure continues for 10 days after Customer’s receipt of written notice of nonpayment; or (b) more than 3 times in any 12 month period.
The rights and obligations of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
Limitation of Liability and Indemnification
IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THE APPLICABLE ORDER FORM OF THE AFFECTED SERVICES IN THE THEN-CURRENT TERM FOR SERVICES PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Further, Service Provider has no responsibility or liability for (i) any search engine (e.g., Google) for penalizing, suspending, terminating, downgrading, or taking action against Customer’s website, profile, account, or any other Customer property; or (ii) any violation or alleged violation of the TCPA, CAN-SPAM, Federal Trade Commission rules or guidelines, or any privacy or security laws.
The Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications that are outside Service Provider’s control. Service Provider is not responsible for any delays, delivery failures or other damages resulting from such problems. Service Provider does not guarantee the Services will be operable at all times or during any down time (i) caused by outages to any public Internet backbones, networks or servers; (ii) caused by any failures of Customer’s equipment, systems or local access services; or (iii) for previously scheduled maintenance.
Customer shall defend, indemnify and hold harmless Service Provider from any third-party claim, suit or proceeding (including reasonable attorneys’ fees) brought against Service Provider as a result of, relating to or arising from (i) Customer’s negligence or willful misconduct, (ii) Customer’s breach of this Agreement or any SOW; (iii) violation of any applicable rule, law, regulation, or third party privacy or intellectual property rights; or (iv) any Customer Material, information, data, content, Services, Deliverables, and other material provided or approved by Customer.
All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice“, and with the correlative meaning “Notify“) must be in writing and addressed to the other Party at the address set forth in an applicable Order Form (or to such other address that the receiving Party may designate from time to time in accordance with this Section 10). Unless otherwise agreed herein, all Notices must be delivered by email, personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 10.
If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each Party. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section 11 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. Service Provider may assign, transfer, delegate, or subcontract any of its rights or obligations without Customer’s consent. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of Minnesota, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Minnesota. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all contemplated transactions in any forum other than District Court of Minnesota or, if such court does not have subject matter jurisdiction, the courts of the State of Minnesota, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in U.S. District Court of Minnesota or, if such court does not have subject matter jurisdiction, the courts of the State of Minnesota. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
The Services, other technology Service Provider may make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Customer represents that it is not named on any U.S. government denied-party list. Customer shall not permit access to or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
The Service Provider shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.